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Dagga decriminalised: how to avoid breaking the law

Weed has been decriminalised in South Africa, but it’s still not entirely legal

The South African Constitutional Court (aka. the highest court in the land, no pun intended) ruled on Tuesday, 18 September 2018 that the private use of weed is no longer a criminal offence. Selling weed, on the other hand, is still a criminal offence.

This doesn’t mean that being in possession of weed is entirely legal, though. There are still some grey areas that need to be explained and new laws that need to be made before dagga users are 100% safe from prosecution.

Constitutional Court key rulings

This unanimous ruling, delivered by Deputy Chief Justice Raymond Zondo, follows the Western Cape High Court’s similar ruling in 2017 that the use of weed in a private space is deemed legal.

“[The judgement] decriminalises the use or possession of cannabis by an adult in private for that adult person’s personal consumption in private and it decriminalises the cultivation of cannabis by an adult for that adult’s personal consumption in private,” says Judge Zondo.

Here are the main points from the landmark Constitutional Court judgement:

  • Possession, cultivation and use of dagga for private purposes is now allowed.
  • A person’s right to privacy in their household is a core part of the Constitution, and as such, they should be allowed to use marijuana in their home if they choose.
  • It is not a criminal offence to be in possession of marijuana in a private dwelling, although the amount of weed in a person’s possession is likely to be capped in laws to follow.
  • This ruling does mean that people are free to grow and sell dagga – it is strictly for private and personal use only.
  • The possession or use of cannabis in the workplace is still illegal. Employees who arrive at work high can be disciplined in line with a company’s code of conduct.
  • Employers still have the right to perform drug tests in accordance with the company’s drug policy, especially if the use of marijuana results in occupational safety concerns.
  • The distribution and sale of weed is still a criminal offence, as is smoking it in a public space.
  • All pending prosecutions pertaining to the possession of weed in a public space will be postponed until the new laws are finalised. If a person is facing criminal charges for possession of weed in their private home, then their case will be dropped.
  • South African law doesn’t work in retrospect, meaning that anyone convicted of possession of dagga prior to this ruling (when it was still a criminal offence) will not be allowed to appeal their sentences.  

weed buds marijuana

Parliament tasked with rectifying laws

After the ruling, the South African Parliament has been given 24 months to rectify the laws and set aside provisions in the legislation for the personal use of marijuana. Any current acts or laws that contradict this Constitutional Court ruling (such as the Drugs and Drugs Trafficking Act and Section 22(A) of the Medicines and Related Substances Control Act) will need to be altered and changed within the next two years.

Parliament will also get to decide the acceptable quantity of dagga of which a person can be in possession, or which they can cultivate for personal use. If a person is in possession of more marijuana than deemed acceptable by Parliament, they could arouse suspicions of intent to deal.

According to the Drugs and Drug Trafficking Act 140 of 1992, being in possession of anything under 115 grams can be successfully argued as intended for personal use. The government will now need to decide if this is the acceptable limit.

Weed marijuana joints

Personal use versus intent to deal weed

One major grey area that police and law enforcement officers now face is in determining whether a person caught in possession of large amounts of weed is using it for personal use or for distribution – determining a person’s intent when in possession of cannabis will be difficult.

Until these laws are finalised by Parliament, it will be up to the discretion of the police and National Prosecuting Authority (NPA) to determine one’s intent if they are caught with a large amount of weed. If a person is suspected of dealing, the police may arrest them. It will be up to the court to decide if the person in possession of dagga had the intent to distribute it, or use it for personal consumption.

Weed-lovers can now smoke away in the privacy of their own home and even grow a plant or two. Just refrain from smoking weed in public spaces and do not sell it, that’s where the law will trip you up (again, no pun intended).

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